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Invoice recitals – All states

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The precedent invoice recitals from the By Lawyers reference publication 101 Costs Answers have been added to various other matter plans. This makes an enormous amount of valuable, drafted By Lawyers content more readily available to all users.

The useful library of invoice recitals provides assistance to practitioners and support staff when preparing invoices in any matter. These recitals, which detail the work usually completed in a variety of matter types, are now available on each relevant matter plan. The appropriate recital appears directly below the invoice precedent.

Invoice recitals are provided for the following areas of law:

  • Conveyancing
  • Criminal
  • Employment
  • Enduring guardianship NSW
  • Estates
  • Family law
  • Injuries, works compensation, victims support
  • Insolvency
  • Leases
  • Mortgage
  • Power of attorney NSW
  • Retirement villages NSW
  • Sale and purchase of business
  • Security of payments NSW
  • Wills

101 Costs Answers is located in the Reference materials folder on every By Lawyers matter plan. It contains practical, detailed commentary on all aspects of legal costs and disbursements. It also contains fully compliant costs agreement precedents for all common areas of law.

Criminal Magistrates’ Court – VIC

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The By Lawyers Criminal Magistrates’ Court publication has been reviewed and enhanced. Improvements following from this review include:

  • The matter plan and commentary have been revised and re-ordered to better reflect the flow of the criminal Magistrates’ Court processes.
  • New and amended commentary headings for improved searchability.
  • The summary of the 2018 bail reforms has been incorporated into the general commentary as those provisions are now entrenched.
  • The commentary on taking instructions in criminal matters has been expanded.
  • The commentary on the preliminary issues which may require practitioners’ attention before the first court appearance, or before a plea is entered, has been enhanced.
  • Commencement of charges is now dealt with in more detail, including notices to appear and the consequently different process which applies compared to a charge and summons, or a warrant.
  • The importance of identifying whether the charge is summary or indictable has been highlighted and discussion of the different processes which apply to each stream has been enhanced.
  • Discussion of the process for charges in the indictable stream has been augmented with new headings added, including the Filing hearing, The hand-up brief, Committal mention, Applying for summary jurisdiction, Pleading guilty at the committal mention and Listing a committal hearing.

Practitioners are reminded that the Criminal Magistrates’ Court publication now also includes the By Lawyers guide to Commonwealth Offences, which covers all aspects of dealing with Commonwealth offences in state courts.

This review is part of the continuing commitment of By Lawyers to updating and enhancing our publications to help our subscribers enjoy practice more.

Land transfer duty waiver – VIC

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The Victorian Government has announced a land transfer duty waiver for purchases of Victorian residential property with a dutiable value of up to $1 million.

For new residential properties, a 50% duty waiver applies. For existing residential properties and vacant residential land, a 25% duty waiver applies.

The applicable waiver is applied to the duty otherwise payable after all other eligible benefits, such as the first home buyer duty concession, the principal place of residence concession and the pensioner concession, have been taken into account.

The waiver can apply to the purchase of an investment property. There is no requirement to live in the property.

The waiver can be applied for more than once.

While a foreign person can obtain the waiver, it does not apply to foreign purchaser additional duty.

To be eligible for this waiver:

  • the purchase must be of residential property;
  • dutiable value must be $1 million or less;
  • the contract must be signed on or after 25 November 2020 and before 1 July 2021; and
  • the arrangement must be a bona fide purchase for adequate consideration i.e. not a gift.

The State Revenue Office will apply the waiver automatically if all eligibility criteria are met based on the information provided in the Digital Duties Form.

For further information, see the State Revenue Office page Land transfer duty waiver for residential property transactions of up to $1 million.

The By Lawyers Conveyancing – Purchase of real property (VIC) Guide has been updated accordingly.

1 January updates – All states

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The By Lawyers has attended to the following 1 January updates required by legislation and practice in all relevant jurisdictions:

Land tax – Increases to threshold values – NSW

Land tax thresholds in NSW are indexed to rise on 1 January each year.

The 2021 threshold combined land value has increased to $755,000 for all liable land. Special trusts and non-concessional companies are excepted.

A marginal tax rate of 1.6% of the aggregate taxable value above the tax-free threshold plus $100 applies.

If the aggregate taxable value exceeds the premium rate threshold of $4,616,000 then $60,164 is payable plus a marginal tax rate of 2% over that amount.

All relevant commentary and precedents in the By Lawyers Conveyancing & Property and Trusts guides have been updated accordingly.

By Lawyers Contract for sale of land

The 2021 edition is now available on the Sale of real property matter plan in the Contract section.

Leases and subleases – NSW, VIC, QLD, SA and WA

The 2021 editions are now available on the Leases – Act for Lessor matter plan for each jurisdiction.

These additions form part of our continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Bankruptcy

In response to the COVID-19 pandemic temporary changes were made to bankruptcy law, increasing the debt threshold to $20,000 from $5,000 and increasing the time frame for a debtor to respond to a bankruptcy notice to 6 months from 21 days.

As of 1 January 2021 these changes have ceased and a new permanent bankruptcy threshold has been implemented.

The current debt requirement for bankruptcy is a minimum debt of $10,000 and the current time to respond to a bankruptcy notice is 21 days.

The By Lawyers Insolvency – Bankruptcy of individuals publication has been updated accordingly.

Always up to date

In addition to our annual 1 January updates, By Lawyers ensures our publications are updated for 1 June and any other statutory or regulated adjustments where necessary. We also promptly  update our content for all relevant legislative amendments and other legal developments throughout the year, in all jurisdictions.

The team at By Lawyers wishes everyone a prosperous and safe 2021.

Contract of sale of land – By Lawyers VIC 2021 version

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Conveyancing practitioners should be aware that the Contract of sale of land – By Lawyers VIC 2021 version has now been published.

The contract is available to LEAP users with the By Lawyers integration and to non-LEAP users by subscription to the Conveyancing (VIC) publication. The contract can be found in the Sale of Real Property (VIC) guide. The contract is also available for purchase through InfoTrack.

The contract was co-authored by Victorian property law guru and long-time By Lawyers author Russell Cocks. For more information about the By Lawyers contract listen to the podcast Seven reasons to use the By Lawyers Contract of sale of land.

The By Lawyers Contract of sale of land for Victoria was introduced on 1 March 2018 and its use has been increasing steadily among Victorian legal practitioners and conveyancers. The contract removes the need for special conditions other than those covering special circumstances and has a number of other advantages over the LIV contract which further simplify the conveyancing process.

Additions to the Contract of sale of land – Parts 1 and 2 – By Lawyers VIC 2021 version

  • GST provisions in the Particulars section of Part 1 have been amended for clarity.
  • An option of 14 OR 21 days has been added in relation to the loan approval period.
  • Clause 14 of the General Conditions has been amended to provide the purchaser with the ability to request an extension of time to obtain loan approval, sets out the corresponding options for the vendor, and provides for the outcome where the vendor fails to respond to the extension request in time.
  • Clause 15 has been amended to provide for the rectification of any error made in the calculation of adjustments that is discovered after completion.
  • Clause 22 clarifies that where the property is subject to the Retail Leases Act 2003, the vendor must provide the purchaser with a copy of the disclosure statement.

Rest assured that the By Lawyers contract is immediately brought up to date with any changes in law or practice.

Court books – All states

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Court books are an indexed collection of all documents that the parties rely upon in proceedings, collated for convenience of use during a hearing. They are commonly used in all litigation matters and are compulsory in some courts, especially in specialist lists and on appeal.

A court book ordinarily includes all pleadings and evidence. It generally omits any irrelevant documents, even if they were disclosed in the proceedings. For example, a voluminous bundle of documents may have been produced under a subpoena issued by one of the parties in the lead-up to the hearing, but the party only seeks to rely on a few documents out of the bundle. The court book will contain the subpoena itself plus those relevant documents only.

A properly compiled and indexed court book allows solicitors, counsel and the bench to have a common reference point and easily navigate to relevant documents and issues as the hearing proceeds.

Two new precedents for creating court books have been added to every By Lawyers litigation guide in Australia.

The precedents Court book cover page and Court book index are customised for each court in each jurisdiction. They comply with each court’s requirements and will assist practitioners in compiling court books in all types of litigation.

 

HomeBuilder – FED

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The Federal Government has announced an extension to the HomeBuilder scheme to 31 March 2021, however the grant amount has been reduced to $15,000. The $25,000 grant is still available, with amended eligibility criteria, for building contracts signed on or before 31 December 2020.

HomeBuilder $25,000 grant

For building contracts signed between 4 June 2020 and 31 December 2020, a $25,000 grant is available to certain individuals who build a new home or buy an off the plan home, or substantially renovate an existing home. The grant cannot be used to buy an existing house and is limited to Australian citizens earning less than $125,000 or couples earning less than $200,000.

The value of new builds is capped at $750,000. For renovations, the home must be worth less than $1.5 million before the renovation, and projects must cost between $150,000 and $750,000.

The building contract must be signed between 4 June 2020 and 31 December 2020, and work must commence within six months of the contract date.

Applications must be submitted by 14 April 2021.

HomeBuilder $15,000 grant

For building contracts signed between 1 January 2021 to 31 March 2021, a $15,000 grant is available to certain individuals who build a new home or buy an off the plan home, or substantially renovate an existing home. The grant cannot be used to buy an existing house and is limited to Australian citizens earning less than $125,000 or couples earning less than $200,000.

The value of new builds is capped at $950,000 for NSW, $850,000 for VIC and $750,000 for all other States and Territories. For renovations, the home must be worth less than $1.5 million before the renovation, and projects must cost between $150,000 and $750,000.

The building contract must be signed between 1 January 2021 and 31 March 2021, and work must commence within six months of the contract date.

Applications must be submitted by 14 April 2021.

State-based grants

On top of the HomeBuilder scheme, some states are offering related payments in addition to the Federal grant. See the relevant By Lawyers Conveyancing – Purchase Guide for further information and relevant application forms or links where applications are made online.

All By Lawyers Conveyancing – Purchase Retainer instructions precedents now also include these grant details.

Estates cases – VIC

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New estate cases have been added to the By Lawyers 101 Succession Answers (VIC) reference manual.

The new cases under the Estates section of the publication relate to:

Vesting of interest in beneficiaries – Rule in Saunders v Vautier

A beneficiary can apply to the court to have their interest vest earlier than provided for in the will. The rule in Saunders v Vautier possibly provides such a mechanism.

The High Court set out the modern formulation of the rule in Saunders v Vautier in CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53 at [47]:

Under the rule in Saunders v Vautier, an adult beneficiary (or a number of adult beneficiaries acting together) who has (or between them have) an absolute, vested and indefeasible interest in the capital and income of property may at any time require the transfer of the property to him (or them) and may terminate any accumulation.

If the beneficiaries are ascertained, have capacity and all consent then ‘they may put an end to the trust by directing the trustee to transfer the interest in the estate to themselves, notwithstanding any direction to the contrary in the trust instrument’: Krstic v State Trustees Ltd [2012] VSC 344 at [15].

For a case where the rule was not upheld due to the beneficial interest being classed as contingent, see Arnott v Kiss [2014] NSWSC 1385. This case also suggests that a gift over clause may defeat application of the rule.

Accordingly, whether there is any reason for the executor to resist the application would depend upon there being any terms of the will that might support such a position. If the executor is in any doubt then the trustee can and should seek judicial advice.

The addition of these new estate cases to 101 Succession Answers (VIC) is part of our continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

New succession cases – VIC

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New succession cases have been added to the By Lawyers 101 Succession Answers (VIC) reference manual. These helpful recent cases fall under the Estates and Family provisions claims sections of the publication.

Costs in Family provision claims

Shelly v Prager (No 2) [2020] NSWSC 1553 concerned the court assessing the overall justice of a case when determining whether special provision for costs should be made in a family provision claim. Williams J at [18] stated the following factors may be relevant:

– whether one party has engaged in unreasonable conduct in the commencement or maintenance of the proceedings which has resulted in the other party (or parties) to the proceeding incurring unnecessary costs;

– whether an applicant’s claim for provision out of an estate is frivolous, vexatious or made without reasonable prospects of success;

– whether an applicant’s claim, although unsuccessful, was otherwise reasonable, meritorious or borderline; and

– the relative size of the deceased estate.

Judicial advice for trustees

Re Perpetual Trustee Company Limited as a trustee for the Joseph Banington Davis Settlement [2020] NSWSC 1574 concerned the dual purpose of an application for judicial advice by an executor/trustee. Robb J at [72] noted that:

It is…not right to see a trustee’s application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust.

The addition of these recent cases to 101 Succession Answers (VIC) is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Traffic offences – VIC

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The By Lawyers Traffic Offences – VIC publication has been updated and revised.

With the final commencement of the Road Safety and Other Legislation Amendment Act 2020 on 12 November 2020, the Road Safety Act 1986 has been amended to provide for immediate driver licence or learner permit suspensions in certain cases.

This includes excessive speed offences more than 45 kph over the speed limit which are mobile camera detected or for offences where a motor vehicle is used to cause serious injury or death, police can give the driver notice of immediate licence suspension. This requires the driver to surrender their licence for up to 12 months.

There are also immediate suspensions for certain drink and drug-driving offences and heavy vehicle offences.

These legislative amendments have been incorporated in the commentary in the Traffic Offences – VIC publication.

In addition, the commentary has been reviewed with resultant enhancements. The content is re-ordered for better workflow and improved searchability; specific sections have been added for various aspects of sentencing, such as obtaining medical reports; and links to VicRoads and Transport for Victoria online resources are enhanced. The matter plan has been revised to incorporate these revisions.

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